1997 P Cr (PLP)

Babar Khan, Sub-Inspector, F.I.A. and Saddar-ud-Din, F.C. have preferred this petition under section 561-A, Cr.P.C. for quashment of criminal proceedings pending in the Court of Assistant Commissioner (Leave Reserve) Skardu on the basis of F.I.R. No. 20 of 1995, dated 2-7-1995 under section 342/465/468/471/500, P.P.C. lodged in Police Station Skardu.

2. Briefly stated the facts out of which the instant petition arises are that Deputy Accountant-General, Pakistan Revenues, Gilgit through a written complaint informed Assistant Director F.I.A. that District Inspector of Schools, Skardu has been involved in fraudulent drawal of Rs.10,007,746 under Pay and Allowances of Establishment, therefore, necessary action be taken in this regard against the delinquents. Accordingly, Babar Khan, S.-I., the petitioner herein, was deputed to investigate the matter, who in his turn proceeded to Skardu and arrested one Haji Ehsan Ali, Cashier of District Inspector Schools Office, who led to the recovery of Rs.5,95,000 in presence of two marginal recovery witnesses; namely Muhammad Hassan son of Ali and Ahmad Ali son of Muhammad Joo. The Investigating Officer deposited the said amount in National Bank of Pakistan through Challan No.4, dated 20-6-1995. For the arrest of Drawing and Disbursing Officer, Muhammad Ali and Accountant, Ali Shah, the Investigating Officer conducted raids on suspect places, but in vain. On 23-7-1995 Muhammad Ali, D.D.O. and Ali Shah, Accountant secured bail before arrest from the Court of Sessions Judge, Ghanche: "They were accordingly issued notices to deposit the embezzled amount into Government Treasury and resultantly a sum of Rs.4,12,776 was voluntarily deposited by the Drawing and Disbursing Officer in the National Bank of Pakistan, Skardu on 24-6-1995."

3. During the course of investigation, S.-I. Babar Khan, petitioner arrested Muhammad Amin, Tehsildar/Treasury Officer, Muhammad Iqbal, Tehsildar/T.O., Muhammad Ibrahim, Naib-Tehsildar/T.O. and Ahmad Ali, Accountant Treasury Officer, Skardu on 1-7-1995, who all were admitted to bail by S.D.M./A.C., Skardu on 2-7-1995. Soon after their release on bail, the above named Treasury Officers and Accountant lodged F.I.R. No.20 of 1995 under sections 468, 471, 465, 342 and 500, P.P.C. against the petitioners in Police Station Skardu, which gave rise to the- filing of the instant petition under section 561-A,, Cr.P.C.

4. Firstly it was submitted by the learned counsel for the petitioners that a fraud was detected by Deputy Accountant-General, Pakistan Revenues, Gilgit in which huge amount was to be recovered, therefore, the petitioners enjoy indemnity under section 8 of the F.I.A. Act, 1974. Secondly, that the F.I.R. has been lodged as a counterblast to thwart the ends of justice and proceedings. If allowed to continue, will amount to abuse of process of the Court.

5. To facilitate the arguments, it would be advantageous to reproduce section 8 of the F.I.A. Act, 1974, which is as under:-- "Section 8. _Indemnity. No suit, prosecution or other legal proceeding shall lie against the Federal Government, any member of the Agency or any other person exercising any power or performing any function under this Act or the rules for anything which is in good faith done or intended to be done under this Act or the rules." Section 561-A, Cr.P.C. confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. Thus, powers are very wide and can be exercised by the High Court at any time. Ordinarily, High Court does not quash proceedings under section 561-A or 265-K, Cr.P.C. but in exceptional cases, High Court can exercise its jurisdiction under section 561-A, Cr.P.C. without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice. (Reference can conveniently be made to 1994 SCMR 798) provided always that the Court from the available material is satisfied that demands of justice require real, immediate and substantial justice to save a party from harassment and abuse of the process of Court. A judicial review of section 561-A, Cr.P.C. it would be analysed that provisions of section 561-A, Cr.P.C. could be invoked:-- (i) To give effect to any order of any Court, (ii) To prevent abuse of process of any Court. (iii) To secure the ends of justice. Such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. (Reference can be made to 1994 SCMR 70)."

6. As is evident from the record, the petitioners were deputed to investigate the case of embezzlement, drawn by the District Inspector of Schools in active connivance of the then Treasury Officer, which amount was recovered and deposited in Government Treasury and it is stated at the Bar that the case for prosecution sanction has been sent to the Office of Director F.I.A., Rawalpindi Zone, which is likely to be received within a short span of time it is also crystal clear that F.I.R. No.20 of 1995, dated 24-7-1995 of Police Station Skardu was lodged only with a view to harass the petitioners to force them to avoid justice in the criminal proceedings pending against the accused/complainants in F.I.R. 4 of 1995. Therefore, I have no alternative but to hold that after being sure that the proceedings against the petitioners have been launched with mala fide intention, to cause harassment and continuation of the proceedings will amount to abuse of process of Court, hence I deem it a fit and proper case to quash the proceedings pending against the petitioners in the Court of Assistant Commissioner (Leave Reserve), Skardu, in the interest of justice.

7. Accordingly, I would accept this petition and pass the order as above. Since the F.I.R. No.20 of 1995 stands quashed, hence the bail bonds executed by the petitioners stand discharged. N.H.Q./25/Gilgit Proceedings quashed.